Thursday, December 31, 2015

California’s Awful Bill 52

OK, it’s Assembly Bill 52, or just AB52 (See, and since July 1st 2015 it’s been law in California, but it really is awful. You won’t hear that from cultural resource management (CRM) practitioners in California – or rather, you will hear it, but you won’t see it in writing, because to reveal that this emperor has really ugly clothes would have implications for one’s job security. But if you actually read the thing, and think about what it says, it should be clear that the bill will have disastrous effects on Native California’s cultural resources. And what’s crazy is that tribes and their allies promoted it.

Apparently AB52 resulted from someone’s belief that places of cultural importance to tribes were getting short shrift in project reviews under the California Environmental Quality Act (CEQA) – that CEQA’s approach to defining the cultural environment was too dominated by the thinking of archaeologists and perhaps architectural historians. There’s a lot of truth in that perception; CRM under CEQA is seriously archaeo-biased (and where there are buildings involved, often architecto-biased). There’s good reason for tribes, and indeed anyone who thinks that cultural value in the environment may derive from something other than the interests of archaeologists, to seek reform.

However, there’s nothing fundamental to CEQA that created archaeo-bias; it’s something that’s built up through practice by CEQA consultants, influencing the choice of words and phrases used in the CEQA Guidelines issued and periodically revised by the State Resources Agency. The problem could have been addressed through minor wording changes in the Guidelines, and by educating consultants and government agencies.

The authors of AB52, however, elected to change the law, and they did so in some breathtakingly stupid ways, either never thinking through the consequences of their actions or willfully disregarding them.

Rather than clarifying the fact that CEQA really does require, and always has required, attention to the whole environment, including those aspects of it ascribed cultural value by Native Americans, the authors of AB52 implicitly accepted the notion that CEQA did not have such a holistic scope. Accordingly, in order to give tribal cultural places the consideration they deserve, the bill’s authors convinced themselves that they needed to broaden CEQA’s scope by “creating,” in the words of the statute:

“a new category of resources… called ‘tribal cultural resources,’ that considers the tribal cultural values in addition to the scientific and archaeological values when determining impacts and mitigation” (AB52, Section 1(b)(2))

Let’s not quibble about whether a “category” can “consider” or “determine” anything, and let’s not even wonder why the authors seem to take it for granted that “the scientific and archaeological values” are all CEQA required be considered before AB52 burst on the scene.  Let’s examine what comprises this “new category.”

AB52 defines “tribal cultural resources” at Section 21047(a) of the State Public Resources Code as either of the following:

(1)  Sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe that are either of the following:

(A)    Included or determined to be eligible for inclusion in the California Register of Historical Resources.
(B)    Included in a local register of historical resources as defined in subdivision (k) of Section 5020.1.

(2)  A resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to criteria set forth in subdivision (c) of Section 5024.1.

So to generalize, a “cultural resource” in California apparently has to be a site, “feature,” place, cultural landscape, “sacred place,” or “object. Never mind the semantic overlaps and redundancies (grist for the mills of lawyers); the big problem is that this language effectively precludes from consideration any of the following as cultural resources.

  • Animals (e.g. condors, salmon, whales, wild horses and burros)
  • Plants (e.g. oaks, sage, willow, redwood)
  • Water
  • Air
  • Viewsheds
  • Stories, songs, dances
  • Beliefs and traditions.

Never mind that some of us – including quite a few tribes – have been railing for years about the need to consider such resources more fully. Never mind that there’s a UNESCO convention on “intangible cultural heritage” (meaning stuff like songs, stories, and the like). In California, to be a “cultural resource” something now has to be a piece of real estate, or maybe a chunk of personal property (an “object”). So impacts on cultural significant plants, animals, water, air, viewsheds, stories, and the like no longer need to be considered in CEQA analyses. Nice for the land-development community, not so nice for tribes, to say nothing of others who value the cultural environment.

Adding insult to injury, a “tribal cultural resource” must be included in, or “determined (by someone) to be eligible for” the California Register of Historic Resources, or included in a local register. Are these registers maintained by tribes? Do tribes feel that those who do maintain them are always sensitive to tribal concerns? Is it tribes who “determine” things to be eligible under CEQA? Not that I’ve noticed.

So a “cultural resource” not only has to be a piece of real estate; it has to be a piece of real estate whose cultural value has been recognized by an official body – and not a tribal official body.

Oh yes, another way for a piece of property to be recognized as a “tribal cultural resource” is for a “lead agency” – that is, a state or local government agency – to find that it meets the criteria set forth in Section 5024.1, subsection (c) of the Public Resources Code. Which takes us right around in a circle, since (a) the “lead agency” is not likely to be a tribe, or necessarily very friendly to tribes, and (b) Section 5024.1(c) is California’s gloss on the National Register Criteria (36 CFR 60.4) – and hence all about places. So once again, animals, plants, water, stories, traditions and the like are left out in the cold. And in order for the “lead agency” to determine that a “resource” meets the Section 5024.1(c) criteria, the determination must be based on “substantial evidence” – presumably as defined by the lead agency. Can we guess what sorts of evidence most state agencies and local governments will demand?

AB52 goes on to add several more twists and turns to the Public Resources Code, the gist of which is that lead agencies ought to think about “tribal cultural resources” (as defined) when considering whether chunks of real estate are cultural landscapes or historic resources or archaeological sites of various kinds. These jots and tiddles are necessary because CEQA-mongers have turned the whole law into a convoluted mess of tangled definitions and rules, each of which has to be adjusted any time a change is made.

But tribes have to be consulted, yes? Yes, in theory they do, and that’s a good thing, but –

  • The lead agency need consult a tribe only if the tribe has formally requested that it be consulted; there’s no obligation placed on the agency to check around and find out if anybody’s out there – as there is under federal law;

  • The tribe must respond within 30 days of being contacted, in order to trigger consultation; otherwise presumably it’s tough luck, Charley;

  • The lead agency, “acting in good faith and after reasonable effort” (presumably as determined by itself) can “conclude that mutual agreement cannot be reached,” and bring consultation to an end. Whereupon, apparently, the lead agency’s CEQA compliance can be certified as complete, and away we go.

  • And of course, consultation has to be about those “cultural resources” as defined – i.e. about those pieces of real estate; never mind the animals, plants, viewsheds, etc., and never mind anything not officially recognized as eligible for the California Register.

One truly wonders why it was necessary to buy the right to be consulted in this limited, stilted manner by throwing away a substantial part of what a tribe might want to be consulted about.

Now, consider a case where both CEQA and federal environmental and historic preservation law apply to a case. Say, a project to install wind turbines on a combination of federal and private land. Under the National Environmental Policy Act (NEPA), we might want to consider the impacts of, say, slicing and dicing culturally important songbirds by the turbines’ props, but under CEQA the critters can’t be considered “cultural resources.” Unless maybe they’re non-tribal cultural resources, in which case the lead agency may (if it feels like it) talk with non-tribes about them, but needn’t talk with tribes.

Meanwhile, under Section 106 of the National Historic Preservation Act (NHPA), the responsible federal agency is expected to consult broadly with tribes and other parties about impacts on any places that might be eligible for the National Register of Historic Places. The burden is on the federal agency to find out what’s eligible, how it will be affected, and what to do about it, in consultation with tribes and others. But under CEQA the lead agency (which may or may not be the same as the responsible agency under federal law) need consult only with tribes that have filed requests within the specified time limits, and need only discuss places that are already included in registers or that the lead agency has somehow determined, based on what it defines as “substantial evidence,” to meet California’s equivalents of the National Register Criteria.

What could possibly go wrong?

The bottom line, I think, is that CEQA is a mess, and rather than trying for a comprehensive rework that would make it simpler and more functional, different interest groups keep tinkering with it; AB52 is part of this ignoble tradition. It’s unusually bad because it will work against the very interests it’s designed to serve, and will do damage out of all proportion even to the good it was (I guess) intended to do. It would be nice to undo it, but it’s going to produce a lot of money for lawyers, so I imagine the citizens of California are stuck with it, and California tribes have gotten screwed again. Self-screwed, but screwed nonetheless.

Where Did We Go Wrong?

As we stumble into 2016, the fiftieth anniversary of the U.S. National Historic Preservation Act (NHPA), it's timely to ask where we went wrong in implementing the law.

Of course, plenty of people, institutions, and government bodies with interests to protect will assure us that we didn’t go wrong, that everything's rosy with NHPA, that it's done nothing but good for the nation and its people, for the world, for history and culture. There are those who think otherwise, however, and I'm one of them -- despite the fact that I've made a passable living as an NHPA specialist these last fifty years, and maybe even helped preserve a thing or two.

Let me be clear: I certainly think that the NHPA has done positive things, but others in this anniversary year will explain these (and more) in great and flowery detail. I appreciate being thus relieved of the need to “balance” this posting, and will focus on the NHPA’s downsides – which others, I’m confident, will ignore.

My impression of the NHPA is easily summarized: I think that we’ve used the law to create a turgid bureaucracy and a symbiotic consultant community, most of whose members –

  • Happily pursue narrow research agendas grounded in their particular fields of study (notably archaeology and architectural history);

  • Manipulate abstruse classificatory and regulatory minutiae (e.g. the National Register Criteria);

  • Exercise the thin powers of petty despots; and

  • Pass money back and forth to one another.

While playing our roles in this “system,” we effectively turn blind eyes to or conspire in the destruction of the nation's and world's cultural heritage. All the while congratulating ourselves on our accomplishments, and on the purity of our principles.

You don't agree? Tough; this is my blog.

So how did we get here? Where did we go wrong? I can identify nine key “decisions” – none of them ever mindfully articulated and thought through – that I think have brought us to our current condition.

  1. Relying on bureaucracy. This was probably inevitable, because no one had – or has, for that matter – an alternative model, but hanging the NHPA’s hat on a system of federal/state (and later tribal and local) bureaucracies has hatched some ugly chickens that have now come home to roost.

It is in the nature of a bureaucracy to give primacy to its own self-preservation, and this has clearly happened with the nation’s preservation apparatus. What calls itself leadership in the National Park Service (NPS) and Advisory Council on Historic Preservation (ACHP), and among the State Historic Preservation Officers (SHPOs) is manifestly interested only in maintaining the status quo, with some grudging allowance for marginal adjustments. People working in the system are mostly committed to career advancement and comfortable retirement. The result is a mindless, procedure-bound system that cannot even conceive of substantial improvement, let alone pursue it.

  1. Putting NPS in charge. When Congress was debating enactment of the NHPA in 1965-6, two possible venues were considered for the bureaucracy thought necessary to its implementation: the Department of the Interior’s NPS and the Department of Housing and Urban Development (HUD). Placing the preservation program in HUD would probably not have been a good idea; it would have at least given it too narrow an urban/architectural focus, and HUD has not proved to be a great steward of anybody’s heritage. But placing it within NPS was little better.

Lodging the program in NPS inevitably made it the poor stepchild of National Park System management. Moreover, it imposed upon the preservation system a “Parky” philosophy in which (a) preservation is justified as a means of interpreting the past to the masses, (b) the ideal model of preservation is public acquisition and maintenance for interpretive purposes, and (c) interpretation is something for experts to do and the public to appreciate. Alternative models are sometimes given lip service by the preservation system’s leadership, but in the end must conform to the traditional structure or be – with regret, of course – consigned to oblivion.

  1. Failing to create effective relationships with environmental conservation writ large. At the very time that the NHPA-based programs were coming together, the National Environmental Policy Act (NEPA) was being enacted and such new governmental entities as the Environmental Protection Agency (EPA) and Council on Environmental Quality (CEQ) were being organized. The opportunity existed to build a broad-based system for managing the human environment overall.

Instead, historic preservationists in government hunkered down and protected their newly created turf. Historic preservation and environmental protection programs accordingly developed on parallel tracks, occasionally interacting but never developing much synergy and never even considering coalescence. As a result, the NHPA continues to be perceived – not without reason – as a law whose major effect is to advance the narrow interests of architectural historians and archaeologists.

  1. Making far too much of the National Register of Historic Places (NRHP). Establishing the NRHP (or something like it) was probably unavoidable, but it didn’t have to be set up as the program’s centerpiece.

By making it such – a failure of imagination at best – the preservation bureaucracy inevitably cast itself as maintaining and promoting an elitist abstraction. Never mind what citizens regard as their heritage; the government’s business became the care and feeding of what NPS thought worth putting on its precious list.

  1. Building a program that was merely multidisciplinary rather than interdisciplinary. The preservation program organized within and around NPS was the creature of architectural historians, with archaeologists as junior partners. Fifty years later, this remains the case, though archaeologists have wormed their ways into some positions of power.

What has not been developed – in government, academia, or the preservation community in general – is an interdisciplinary system synergizing the expertise of disciplines across the academic spectrum – history, archaeology, architecture, engineering, anthropology, geography, social psychology, urban planning, agriculture, education, ethnic and Native American studies, and all the others. As a result, the NHPA program is variously understood and represented by its practitioners to be focused on the built environment, on archaeological and historical data, on a vaguely defined sort of historical ambience, and just on preserving anything that’s old and constructed by humans. The program lacks a clear focus of relevance to the citizens it is supposed to serve, and it fails to tap into the best thinking of any of the relevant disciplines.

  1. Relying too heavily on SHPOs. Nobody likes the federal government, even when its services are most needed, so since the NHPA’s enactment there has been pressure on NPS and the ACHP to decentralize and delegate. Delegation has been almost exclusively to the SHPOs, with nods every now and then to local governments and under narrow circumstances to tribes.

Some SHPOs have set up responsible, even laudable, programs, but others have evolved into mere despotisms. Moreover, the notion that the SHPO, in the ill-considered words of the NHPA Section 106 regulations, “reflects the interests of the State and its citizens in the preservation of their cultural heritage[1]” has encouraged federal agencies and others whose decisions can threaten the cultural environment to regard NHPA compliance as requiring only the submission of project plans to SHPOs for approval. SHPOs are congenitally ill-funded, often staffed by ill-qualified and hence highly self-protective “professionals,” subject to high levels of political pressure, and given little protection by the NHPA regulatory system. As a result, project plans submitted for “clearance” often receive it with little attention even to loudly expressed public opposition – provided the submitting agency has organized its paperwork according to the SHPO’s specifications. SHPOs become co-conspirators in heritage destruction. By doing so – and by maintaining a narrow focus of interest (See 3, 4, and 5 above) – they also ensure that they are poorly understood and ill-appreciated by the public, guaranteeing that they remain ill-funded and poorly staffed.

  1. Failure to recognize and relate positively with interests in the broader cultural environment. The many scholars, organizations, activists and other interests who seek preservation of a human heritage that extends far beyond the boundaries of “historic places” find little support from the NHPA-based system, and much in it to puzzle and discourage them.

Do you want to protect the integrity of wild horse herds and their habitats, or salmon, or whales? Sorry, the NRHP doesn’t list animals. Do you want to bring back your tribe’s traditions of plant gathering, wood carving, or dance? That’s nice, but we’re interested in historic places. Are you concerned about what this proposed pipeline or highway or military base or industrial development will do to the natural environment or neighborhood qualities that your community has valued for generations? Well, if you can show us that some aspect of the landscape or neighborhood meets the NRHP criteria, maybe the law will do something for you, but we’re not going to help you do it, and if we’re working for the pipeline or highway or military or industrial change agent, we can find plenty of ways to interpret the law to exclude your environment from consideration.  

The historic preservation system thus remains marginal to much of what people and communities think is important about their cultural heritage, and worthy of preservation. This marginal condition is relatively safe and comfortable for the preservation bureaucracy, but in the long run it means irrelevance.

  1. Failure to engage the academic community. Confronted with such “systems,” it is probably not surprising that academic historians, archaeologists, and architects have viewed the NHPA largely as the authority under which their less talented students can find employment. Little or nothing is done by the preservation bureaucracy to encourage them to view it otherwise.

So students may be encouraged to structure traditional historical research in support of National Register nominations, or to produce regional syntheses to inform the evaluation of archaeological sites, but that’s about it. Do we, for instance, ever see class projects in which students from several different disciplines – or even one! – critique the (usually godawful) “cultural resource” sections of an environmental assessment or impact statement? We do not. Do we ever see such a project focusing on how an SHPO’s operations could be made better? Not that I’ve observed. Do we ever see SHPOs or NPS or the ACHP trying to organize such deployments of analytical thinking? Nope. Academics go their ways, and government-based preservation people go theirs, with rare overlaps and no synergy. And the SHPO offices, government agencies, and consulting firms serve as dumping grounds for graduates who aren’t equipped to graze in the green pastures of academia, perpetuating the very characteristics of the system that discourage academic involvement and minimize relevance.

  1. Failure to embrace change. Opportunities have presented themselves repeatedly over the years for changing the system, broadening its focus and simplifying its operations, for engaging other interests and better including the interested public. Preservationists have routinely dodged these opportunities.

When NEPA was enacted, serious consideration could have been given to wrapping the NHPA programs into the EPA. Instead they stayed in NPS.

When the Archaeological and Historic Preservation Act (AHPA) was enacted in 1974, real efforts could have been made to open up the NHPA system to the other kinds of “scientific, prehistorical, historical, or archaeological data[2]” addressed by the statute, and to create the links to the academic community needed to manage them. NPS could not even bestir itself to finalize AHPA regulations.

When Jimmy Carter merged NPS and related Department of the Interior programs into the Heritage Conservation and Recreation Service (HCRS), an opportunity was created to get the erstwhile NPS external programs out from under the Parks umbrella and give them independent life. Instead, preservation’s bureaucrats fretted and mumbled and waited until Ronald Reagan rescued them by taking things back to the pre-Carter status quo.

When the ACHP tacked across the Reaganite winds in the mid-1980s to simplify the NHPA Section 106 regulations and increase their relevance to the public, NPS promised to follow suit with revisions to the NRHP regulations, but then got cold feet and did nothing.

And so on. Back in 1966, preservationists delightedly found that they had created a comfortable governmental niche, and have relaxed in it ever since. Modern practitioners don’t seem even to imagine that things could be different, and more responsive to public interests.

The impending fiftieth anniversary affords us another opportunity to rethink the NHPA and retool it to face the challenges of its second half-century. It would be nice to think that preservation’s leadership would seize the opportunity, and consider:

  • Finding at least partial alternatives to a permanent federal/state/tribal preservation bureaucracy;
  • Getting the program out from under NPS;
  • Building relationships with an improved and re-invigorated national program of environmental protection;
  • Putting the NRHP in its place;
  • Making heritage management interdisciplinary;
  • In the process, thoroughly rethinking the role and structure of SHPOs;
  • Reforming the system to make it relevant to the academic community, and enlisting its participation, and
  • Making the system much more citizen-oriented.

But I’m not holding my breath. It’s far more likely that change will be avoided until it is forced on us, and what’s forced on us may not be at all to our liking.

[1] 36 CFR §800.2(c)(1)(i)
[2] AHPA of 1974, §3(a)

Thursday, December 17, 2015


My friend. colleague, and one-time client David Blake called the other day to tell me that he’s given up on Virginia. I was tempted to ask what had taken him so long; Virginia has long struck me as such a benighted state that I try to avoid crossing the Potomac. But I know something of what’s driven David to stay, and respect him for doing so. I’m sorry to see him go, and sorrier for what’s driven him out.

David has long been a major force behind the Buckland Preservation Society (  Buckland is a pretty well preserved 19th century mill village in Prince William County, on the southwest side of Broad Run. It includes the site of a substantial Civil War cavalry action. Its landscape remains one of rolling green fields and scattered woodlots, albeit bisected by the godawful U.S. 29 with its uncontrolled globs of commercial development.

But on the northeast side of Broad Run, snarling and slavering, crouches the scourge of Northern Virginia, sprawl development. A scourge that’s been enthusiastically welcomed by the state’s economic and political movers and shakers, chewing up the landscape and pooping out miles and miles of look-alike housing tracts and shopping malls and light industry “parks.” A scourge that’s been fought by a few recalcitrant organizations like the Piedmont Environmental Council and the Buckland Preservation Society, and by individuals like David.

Years ago, David and his group hired me to help them fight a proposal to widen the highway bridge across Broad Run, which – under the guise of a safety improvement – would have opened the village and battlefield to accelerated development. We won that one, in the process helping the Advisory Council on Historic Preservation (ACHP) to take a pretty enlightened posture on the cumulative effects of transportation projects – to which, sadly the Federal Highway Administration continues to turn an eye that is at best myopic. And like the cavalries of the Late Unpleasantness, the Society fought a series of running fights thereafter. Winning some, losing some, and meanwhile buying up property in the village and battlefield and slapping preservation easements on it.

But despite winning some battles, David explained, he’s concluded that preservation has lost the war. Or maybe that’s saying too much, since David is actually beating a strategic retreat to South Carolina, where he’s already preparing for new struggles. But for Northern Virginia he’s lost hope; the stormtroopers of sprawl have proved too powerful, their strategists too clever. Since federal preservation and environmental laws have proved troublesome, the sprawlers and their legislative lackeys have found ways around them – ways to build pretty much anything without enough obvious federal involvement to bring NEPA and Section 106 into play, or to render them impotent if they are invoked. So, David has had enough, and is withdrawing to what he – and I – hope will be more defensible positions in South Carolina.

The Buckland Preservation Society has had lots of valued support from the National Trust for Historic Preservation and the American Battlefield Preservation Program; I imagine that they, like I, will be sorry to see David go. There are probably people at the ACHP who’ll miss him, too – pain-in-the-backside as he often has been to them. But I imagine that they, like I, will understand all too well what has driven him south, and like me wish him well in his new environment.

I’m sorry for Buckland, but its fate reinforces my belief that it’s wise to stay north of the river. 

Friday, December 11, 2015


Last Saturday I found that for some reason Blogspot stopped notifying me of comments on blog postings sometime back in October, and I had a backlog of some fifty-plus to screen, publish, and where appropriate respond to. Apologies to anyone who feels ignored; I think I've published them all now (some were duplicates, some were spam) and replied to those that seemed to demand replies. So if you've been wondering, please visit the blog and check your comment. And again, my apologies for letting things go so long.


If you’re looking for an example of a published oral history that’s a model of the form, I don’t think you’ll go far wrong by looking at Harry Butowski’s just-published I Survived: My Name is Yitzkhak (2015: Word Association Publishers[1]). It’s the recollections of the late Isadore (Yitzkhak) Neiman, covering his youth in what would become at various times part of Russia, Poland and Belarus, his escape from Hitler’s military and loss of his family to the Holocaust, and his struggles to survive inside, outside, and around the armies of Poland and the USSR through World War II and its aftermath until his immigration to America in 1951.

Over the decades, I’ve read a fair amount about 20th century Europe and the near-destruction of its Jewish population by the Nazis, but I don’t think I’ve ever read anything – other than maybe Anne Frank’s diary – that’s quite as evocative as Mr. Neiman’s account. His youth in the village of Czuczewicze, his love of potatoes, his rationalizations for stealing to survive, his plodding treks across vast stretches of the continent with thousands of others trying to stay ahead of the Nazi armies, his diversity of coping mechanisms in the chaos of the post-war USSR – it all comes through with remarkable, touching honesty.

This clarity reflects Butowski’s skillful recording and editing. Butowski began recording Yitzkhak’s recollections in 1974 out of simple interest and friendship, lost track of him when he (Butowski) came to Washington to work as an historian with the National Park Service, and resurrected his notes and tapes after retiring. He has used the latter in editing the former, apparently with a very light hand. A few footnotes to add historical detail, a useful prefatory section that puts Mr. Neiman’s life in historical context, and that’s about it (though anyone who's edited oral history knows that there had to be a lot of effort behind that light touch). So what at least seems to be Yitzkhak’s authentic voice comes through, and is truly compelling.

I Survived is a triumph, and should stand as a testament to the millions who didn’t.


Wednesday, December 02, 2015

On Being “Only Hortatory”

In a somewhat obscure but important piece of litigation known as Center for Biological Diversity, et al. v. Chuck Hagel, et al.[1], the U.S. District Court in San Francisco recently declined to restrain construction of a military base that threatens cultural resources because, it found, “the NHPA ‘take into account’ process is only hortatory, mandating no particular result.” Accordingly, the court found, “there is no likelihood that the United States government, in response to an adverse declaratory judgment, will voluntarily halt construction.”

The case deals with Section 402 of the National Historic Preservation Act (NHPA), which governs U.S. government actions in foreign countries, but the “take into account” language is common to Section 402 and Section 106, the NHPA’s domestic project review requirement. The court’s decision, therefore, seems to undercut the viability of the NHPA’s review requirements both abroad and at home. Theoretically, an agency could simply say “Nope, we’re just not gonna pay any attention to that silly Section 106 stuff,” and the courts would shrug their shoulders and say “OK.”

But what does “hortatory” mean? According to the dictionary, it means “tending to exhort; encouraging”[2]. When I exhort you to vote for Bernie Sanders (as I do), my speech is hortatory. It obviously doesn’t control what you do in the privacy of the voting booth. Apparently the court reasoned that since an agency doesn’t have to preserve anything in response to Sections 106 or 402, the law’s requirement to take effects into account is only hortatory – only encouraging.

Does this really make sense? Well, far be it from me to argue with a judge, but I don’t think so.

For one thing, although certainly the NHPA is intended to result in things of historic and cultural importance being preserved, the requirement imposed by Sections 106 and 402 on federal agencies is not preservation per se, but that agencies give due consideration to preservation, by taking effects into account. The requirement to take effects into account is far more than an encouragement. It’s an order; the agency shall take its effects into account. The fact that Sections 106 and 402 don’t dictate an outcome doesn’t mean that it’s not mandatory to do as they say. 

By way of analogy, the purpose of a speed limit presumably is public safety, but the fact that the speed limit on my street is 25 mph doesn’t guarantee that I’ll be safe and not endanger anyone when I drive away from my house. However, I am nevertheless required not to exceed the speed limit, and can be punished if I do. In the same way, an agency may or may not wind up preserving anything by going through 106/402 review, but it’s nevertheless required – not just encouraged – to take the potential effects of its actions into account. If it doesn’t, it can be punished by having its projects hung up in court.

Furthermore, exhortation sometimes works. Every week in this country and around the world, sermonizers exhort their congregations to do things – be they loving their neighbors or preventing abortions or fending off immigrants – and sometimes, for better or worse, their congregant act on the strength of this encouragement. Jack Kennedy exhorted us to ask not what the country could do for us, but what we could do for the country; I joined the Navy as a result, and many wiser kids joined the Peace Corps. A good-sized percentage of the Bible is given over to hortatory exhortations, and I believe the same can be said of the Quo’ran and other ostensible Words of God that have, on occasion, impelled people to act.

There’s a substantial record of Section 106 – hortatory as it perhaps is with respect to the desired goal of preserving historic places – actually causing things to happen. A very current example of Section 106’s effectuality is the case of “Badger-Two Medicine” on the Lewis and Clark National Forest in Montana. Here the Departments of Agriculture and Interior, in “taking into account” the effects of oil and gas drilling on the area’s traditional Blackfeet cultural landscape, concluded per the Section 106 regulations that there would be an adverse effect on the landscape. They consulted with the Blackfeet and others, but could not reach agreement, so the case went to the Advisory Council on Historic Preservation (ACHP). Layering exhortation upon exhortation, the ACHP issued comments strongly recommending that the drilling not be permitted. The Secretaries of Agriculture and Interior didn’t have to do as the ACHP’s exhorted, but just last week they said that they will[3]. In other words, in response to an undeniably hortatory comment pursuant to what the court says is a hortatory provision of law, the U.S. government has decided not to do something that it had been on track to do for some 25 years – permit the oil and gas under the Badger-Two Medicine to be extracted.

There are, in fact, thousands of cases every year in which agencies do something substantive as a result of taking effects into account under Section 106. Sometimes it’s minor – doing some documentation or data recovery. Other times it’s a lot more major – redesigning projects, pursuing alternatives hitherto unthought-of. Year before last my colleague David Moore and I worked on the proposed demolition of a historic building on a Veterans Affairs medical campus; the result was that the demolition plan was abandoned in favor of rehabilitating the building as a much-needed mental health facility. And occasionally, as in the Badger-Two case, “taking into account” results in the decision that, you know, this just wasn’t a very good idea, so maybe we’d better not do it at all.

Whether this sort of thing could happen in the Hegel case is impossible to say; lots of things influence how any case turns out. But that’s not relevant. Lots of things could happen to make me run over some wandering urchin when I drive down my street, even if I’m going 10 mph; conversely I may very well not run over anybody if I speed. But the speed limit’s exhortation is there for a reason, and the law requires that I pay attention. The Section 106/402 “take into account” provision is there for a reason too. The fact that an agency stamps its foot and insists that taking effects into account won’t cause it to change its mind, regardless of the outcome, should be no more meaningful to a court than my (hypothetical) insistence on driving at 60 mph down Windsor Street.