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Sunday, August 14, 2016

US Fish and Wildlife Service "Cultural Resource Management Policy"

I know, my critics will say I'm on a roll and just can't stop myself. But gee, the hits just keep on coming.

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

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

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.


/s/ Thomas F. King


Anonymous said...

I had no idea FWS was into so many things. Evidently, they do much more than manage the wildlife refuges. They issue grants and permits effecting State, Tribal, municipal, and private lands throughout the nation. I have heard that failure to get one of their permits can result in multi-million dollar fines,and even jail time, so these things are no joke. And, they can all require NHPA consultation. And that is in addition to all of the other things the agency must do on its own lands (ARPA, NAGPRA, sacred sites, etc.).

The newly published protocol for all of this puts a heavy emphasis on the "RHPO" function. Since the function is central to almost everything, one has to ask: how well provisioned is this critical position ?

Do the RHPOs have a budget ? Do they have local staff ? Do they have sign-off authority on anything the FWS does that would come under NHPA and the other laws ? Does FWS have a funded historic preservation program to back up the "RHPO" function (other than salaries ?). And how many RHPOs are there ? One in every state ? More than one ? Do they receive regular training ? Are they properly placed within the FWS organization to be very effective ?

These are basic questions that have to be asked.

Thomas F King said...

All good questions, Anon, which perhaps some FWSer would like to answer. I suspect that the answers are pretty universally "no." And FWS isn't alone; it's pretty common to set up some poor dweeb as the Agency XYZ Officer without giving them any authority, staff, or budget. And then solemnly assure the world that all's well because the XYZ Officer is on the case. It's a cheap way to get out from under actually DOING anything about those pesky enviro- and HP laws.

Anonymous said...

Having some answers from Fish and Wildlife would be good, because without more background - and hard facts - it doesn't sound like we should put much stock in this agency's new "policy". More information is needed. Is there anything to back up the promises ?

Everybody has a different reason for asking.

As a contract consultant, I wonder if Fish and Wildlife is worth the time and effort to submit a bid. It could be a one time shot - and no repeat business. That may sound like a very selfish motivation - and it is - but it's all part of working with a solid preservation customer, versus a pretend one. Business is highly competitive, and consultants can't afford to waste their time on the wrong horse. Let's be honest. Consultants pan for gold, not fool's gold. And aren't consultants part of the overall preservation effort ?

And Tribes, SHPOs, and preservationists in general want to know that they are dealing with a solid preservation partner, not an agency that will leave 'em hanging, or is unpredictable and prone to disappoint. When a Tribe or a SHPO or a preservation organization links up with FWS, they should have trust in FWS's ability to follow through, and trust in its' representations of "policy". Can they ? We hope so, but right now we don't know much, other than that there is someone in the organization called an "RHPO" that is supposedly looking out for them, and is on their side, and has the clout and the means and the internal support to come through for them.

Am I wrong ? Your open letter to the Secretary is good, but it raised these additional questions. Maybe one of your readers can lend some reassurance, but my first reaction to the new policy is, "show me". That goes for any other agency's policy too.

Thomas F King said...

What troubles me most about the FWS "policy," Anon, is that it seems to have been generated without any serious peer review or public vetting. We do have a law -- the Administrative Procedures Act -- that says that such stealth policy making is a no-no, but agencies like FWS seem to have forgotten about it.