Below, a letter that went out today to the Secretary of the Interior about what her minions in the Fish and Wildlife Service are up to. I do not expect it to accomplish anything; I may (or may not) get a letter from some dweeb in the Secretary's office thanking me for my input and assuring me that the Secretary and the Obama administration are so, so interested in public input, and then they'll pass the letter to another dweeb in Fish and Wildlife to file and forget. But one has to do SOMETHING.
And I know it's the same old thing. That damned brick wall just keeps standing there, taunting the head.
August 15, 2016
The Honorable Sally Jewell
Secretary of the Interior
1849 C
Street, N.W.
Washington DC 20240
Washington DC 20240
Madam
Secretary:
I am
writing to object in the strongest terms to something purporting to be the
“policy” of your Fish and Wildlife Service (FWS) regarding “cultural
resources,” posted recently on the Worldwide Web at https://www.fws.gov/policy/614fw1.html.
I am
perhaps suffering under a misapprehension, but I thought that the
Administrative Procedures Act required interagency and public review of such
documents before their issuance. I see no evidence that this “policy” was
subjected to such review, and cannot believe that if it had been, it would have
survived to appear in its present form. As it stands, it appears to be almost
deliberately designed to lead FWS officials into noncompliance with at least
the National Environmental Policy Act (NEPA) and Section 106 of the National
Historic Preservation Act (NHPA). I presume, however, that no ill intent was
involved; rather, I suspect that a group of inexperienced and ill-educated FWS
employees came up with what they thought was a good idea, and somehow got their
superiors to sign off on it.
Their
superiors should seriously re-think their approvals.
The
“policy” is so riven with errors and misleading statements that I cannot begin
to take the time to identify them all, but let me just point out a few low
points:
1.
Conflation
of the NEPA term “cultural resource” with the NHPA term “historic resource.”
“Cultural resources” are among the “unique characteristics” of a potentially
affected area that the NEPA regulations at 40 CFR § 1508.27(b)(3) require an
agency to consider in judging the significance of a proposed action’s potential
effects. Since the term is not defined, one is left to assume that it means
“resources” (useful things) whose value is somehow “cultural.” The term
“historic resource” is also used without definition in 40 CFR § 1508.27(b)(3),
apparently to mean “resources” that are somehow “historic” (i.e. old). The same
term was defined more narrowly by Congress at Section 301(5) of the NHPA
to mean places included in or eligible for the National Register of Historic
Places maintained by your National Park Service (NPS).
The
FWS “policy” conflates the terms, effectively saying that if something is not a
NHPA historic resource – or an artifact or old document -- it is not a NEPA
cultural resource, and therefore presumably need not be considered under either
statute. Actual direction about how to recognize and deal with “cultural
resources” is overwhelmingly oriented toward historic resources; after an
initial mention, all other kinds of “cultural resources” are forgotten.
This
defines rather substantial parts of the cultural environment out of existence.
Apparently to whoever dreamed up the FWS “policy,” such cultural institutions
as the hula in Hawai’i and the practice of decorating graves in the
southeastern United States are not “cultural resources.” More directly relevant
to the FWS mission, can one seriously say that bison are not cultural resources
from the perspective of a Plains tribe? That salmon are not cultural resources
for tribes of the Northwest? That wild horses and burros are not cultural
resources despite Congress’ declaration in the Wild and Free-Ranging Horses and
Burros Act of 1971 that they are “living symbols of the historic and pioneer
spirit of the West?” That eagles are not cultural resources for a great many
tribes, and indeed for the United States?
By
essentially writing off any “cultural resource” that is not an “historic
resource” (or maybe an artifact or document), your employees in FWS are
excusing their agency from considering its impacts on cultural resources that
are not pieces of real estate eligible for the National Register. I hope that
you do not support such a narrow, crabbed interpretation of any Interior
agency’s responsibilities.
2. Exclusion
of land acquisition from NHPA Section 106 review. The “policy” “reminds”
readers that “land acquisition is not an undertaking with the potential to
affect historic properties” – meaning that it does not require review under
Section 106 of the NHPA and its regulations (36 CFR Part 800). Has this
conclusion been embodied somewhere in formal Department of the Interior policy,
as the notion that one should be “reminded” of it suggests? If, for example,
cattle ranching is a traditional land use of long standing in Wildherd County,
Nevada, such that many working ranches there may be eligible for the National
Register, and if FWS proposes to acquire such ranches for purposes of improved
sage grouse habitat management, can you seriously contend that this acquisition
has no potential effect on historic properties? If so, I suggest that someone
needs to lay out the logic on which such a contention is based, and subject it
to public and interagency review.
3. Bias
in favor of “experts” and against the public. The “policy” asserts that “only a
subject matter expert may identify a property as historic.” Based on some
fairly substantial experience, I am not aware of any law, regulation, or even
general policy guideline (other than the one discussed here) that could serve
as a basis for this assertion. Expert opinion is sometimes needed to determine
what is historic, but anyone can nominate something to the National
Register or propose that something is eligible for it. Particularly with
respect to “traditional cultural places” – a category of “resource” explicitly
listed in the “policy” – NPS guidance stresses that evaluation must be done in
close consultation with those who value such places, who are not ordinarily
“subject matter experts” as defined in the “policy” (i.e. professional
archaeologists, historians, etc.). The NHPA Section 106 regulations, at 36 CFR
§ 811,4(c)(1), requires that agencies “acknowledge
that Indian tribes and Native
Hawaiian organizations possess special
expertise in assessing the eligibility
of historic properties that may possess
religious and cultural significance to
them.” The geniuses who put together the FWS “policy” apparently think that
such expertise exists only among members of tribes and Hawaiian groups who are
also archaeologists, historians, or architectural historians.
Seriously, Madam Secretary, you are presumably
paying people to put out stuff like the FWS “policy;” you really ought to
insist that they do their jobs, and not leave it to unpaid outside critics like
me to call them on their mistakes.
Please have your people withdraw the “policy”
and rework in in consultation with people who have some idea what they are
talking about, including relevant other federal agencies and the public.
Sincerely,
/s/ Thomas F. King
